Roffman v. Hempstead Lincoln Mercury Motors Corp. , 204 N.Y.S.2d 324 ( 1960 )

Mario Pittoni, J.

Motion to dismiss the complaint as against defendant Franklin National Bank is granted.

There are no allegations in the complaint showing any cause of action against the defendant Franklin National Bank of Long Island, nor does plaintiff’s attorney in his brief claim that any cause of action is stated. He contends, however, that as the bank has a chattel mortgage on the automobile purchased by the plaintiff from the Hempstead Lincoln Mercury Motors Corp., it should be joined as párty, so that if the plaintiff is successful in his action for a rescission a part of the purchase price would be used for the extinguishment of the lien of the chattel mortgage. It does not appear, however, that the transaction with the bank was involved with or was a part of the sales transaction between the automobile dealer and the plaintiff. The suggestion that the situation is similar to that in Syracuse Sav. Bank v. Yorkshire Ins. Co. (301 N. Y. 403) where in an action on an insurance policy it was held a mortgagee should be joined, is without merit, for the mortgagee’s interest was directly referred to in the policy sued upon in that case.